joinder of Takoushis
22 Mr Takoushis' position is different to Mr Bal's position. He is an employee, rather than an "officer" of the second and third respondents. That of itself does not prevent him from being a party or being involved. The notion of involvement in conduct does not require that a person must occupy a particular position. As Lindgren J pointed out in Microsoft Corporation v Auschina Polaris Pty Limited (1996) 71 FCR 231 at 243-4, affirming the "authorised, procured, or directed" test in relation to tortious conduct by companies:
"What seems to underlie this test is the notion that, necessarily, companies can engage in tortious conduct only through human beings, and, at least ordinarily, where a particular human being involved and responsible to an appropriate extent can be identified, he should, as a matter of policy, be liable." (Emphasis added)
23 This extract emphasises the fact-specific nature of each determination. It does not follow that a person must be involved in what can be described as "an executive decision-making role" although that may be an important consideration: see Sony Music Entertainment (Aust) Limited v CEL Music Pty Limited (in liq) [2002] FCA 193 at [26]; Henley Arch Pty Limited v Clarendon Homes (Aust) Pty Limited (1998) 41 IPR 443 at 463.
24 The submissions for Mr Takoushis rely largely on the assertion that he was not an office holder, and that he was merely a low level employee performing clerical or technical functions. The question of Mr Takoushis' involvement in the conduct complained of is one of fact and degree, and requires careful consideration on the evidence adduced, in order to determine whether he had a sufficient degree of involvement in the conduct. No general rule can be laid down as to any level of responsibility which must attach to his position.
25 In the present case, sufficient evidence has been presented by the applicants to persuade me that the case sought to be brought against Mr Takoushis cannot be said to be manifestly untenable in accordance with the principles set out in General Steel. Mr Takoushis signed off on a check list that designated the service that hosted the website that has been implicated in the alleged infringing activities in question. He provided technical information and advice on an ongoing basis for that website, and assisted Cooper in operating and working the website. He appears also to have been involved in preliminary arrangements for the hosting of websites on behalf of E-Talk or Com-Cen. He was involved in discussions on behalf of E-Talk or Com-Cen regarding an agreement with Cooper to provide advertising on the website, in exchange for free hosting services. Importantly, there is evidence that he was the "primary contact" between Com-Cen and Cooper. In my view, this material provides a sufficient degree of involvement to support the addition of Mr Takoushis as a respondent.
26 Mr Takoushis relied upon an affidavit sworn by him on 8 December 2003, and filed on his behalf. However, this affidavit does not provide a sufficient basis for refusal of a joinder application. Mr Takoushis' evidence has not been tested.
27 For these reasons, I consider that the application to join Mr Takoushis as a respondent should be granted.
28 My conclusion is that the application for removal of E-Talk as a respondent should be dismissed with costs, and that the applications for joinder of Messrs Bal and Takoushis should be granted with costs. I consider it appropriate that costs should be ordered to this point because the dispute as to joinder and removal presented a discrete issue and I see no reason why the usual rule should not be applied. I direct the parties to bring in Short Minutes of Order within the next fourteen days dealing with the appropriate directions for the further conduct of this matter.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.